Doctrine of Military Necessity and Role of Religious Institutions: A Commentary
“The ‘Principle of Military Necessity’ permits measures which are actually necessary to accomplish a legitimate military purpose and are not otherwise prohibited by International Humanitarian Law”
International Committee of the Red Cross (ICRC)
Introduction
During international armed conflicts (IAC) or non-international armed conflicts (NIAC), the most vulnerable people are civilians, particularly women and children. They comprise the majority of victims, survivors and internally displaced persons (IDPs). International Humanitarian law (IHL) provide minimum legal protection for this category of persons. The principle of military necessity, casually interpreted and practiced in armed conflict situations, tends to exacerbate the legal protection regime and is often used to justify and indiscriminate deaths of civilians.
The concept of ‘military necessity’ is not the negation, but an integral part of IHL itself, and is a binding body of rules which may not with impunity be violated on the ground of military necessity. This concept has been erroneously invoked by some military commanders and strategists to justify violent and indiscriminate measures deemed necessary to win a given armed conflict. Other critics view the doctrine as a typical military excuse to explain away shocking collateral damage in modern military attacks and operations. To those who view the concept of military necessity very broadly, necessities of war override the way of fighting a war and compliance with IHL.
Due to legal misunderstandings of the concept of military necessity, some military commanders and strategists consider IHL as no more than a collection of pious platitudes, valueless, and do not apply in the ‘real world’ where war is fought, won or lost. Some combatants think, because IHL lacks effective national enforcement mechanism, it therefore has no legal force and effect, and the legal regime on protection of civilians, civilian population and objects can be ignored without any serious consequences to the direct perpetrators or the military and political leadership; or of those who aid and abet the perpetrators in the commission of war crimes.
These extreme views function to destroy all legal restrictions and allow uncontrolled and indiscriminate brute force to range rampant over the battlefield. Examples of near absolute disregard of the principle of military necessity include conducts of combatants who were deployed by their military and political leaders in NIAC in Rwanda, Sierra Leone, Liberia and Northern Uganda, amongst other places. In all these NIAC, the combatants, from all sides of the conflict, acted with impunity and in total disregard of IHL on protection of civilians, civilian population and civilian objects.
In order to make sense of the doctrine of military necessity, the expansive view of the doctrine must be balanced with a more restrictive interpretation for characterization of civilians and civilian objects as legitimate military targets. Therefore, in balancing the concept, we must move away from the extreme end of the spectrum of interpretation at which a doctrinal justification of the notion of “total war” – a notion which blurs or conflates the distinction between military objects and civilian objects – is used to explain away mass killings of civilians, to a restrictive mode of interpretation which makes a clear distinction between military and civilian targets.[1]
It is factually recognized that determining a balance between military and civilian targets is based on a complex, subtle and often elusive non- mathematical equation between military advantage anticipated, on the one hand, and the likely civilian casualties or damage to civilian objects, on the other hand.[2] However, it is unreasonable to suggest that military necessity means that armed forces can do whatever is necessary to achieve their legitimate military objectives in warfare. For example, it would be unquestionably unlawful to kill members of the enemy armed forces that have surrendered or are hors de combat, at any time and in any place irrespective of where they are located or what they are actually doing. It is equally wrong to suggest that combatants who are resting, having a meal, or are not engaged in actual or immediate conflict, are by the mere facts of being combatants, are legitimate military targets.
A more restrictive and acceptable approach to the doctrine of military necessity interprets the doctrine as always placing limitations on military actions, in the sense that no military attacks or operations may be undertaken, regardless of its legally otherwise under IHL unless it is actually necessary in military terms. Significantly, this restrictive interpretation recognizes that ‘military necessity’ is not the same as ‘military advantage’ – which is a factual description of the outcome upon which actions are predicated – compared to military necessity which is a legal concept.
Overall, ‘military necessity’ is best defined as the requirement, in any given set of circumstances of IAC or NIAC, the parties shall act in accordance with IHL and other rules of law (customary international law and general principles of law) to achieve legitimate military objective.[3]
The role of Religious Institutions and evolution of Doctrine of Military Necessity
The essence of the doctrine of military necessity is that when circumstances are such that the attainment of the objective of war and the escape from extreme danger would be hindered by observing the limitations imposed by IHL, then necessity must triumph.[4] In other words, the doctrine of military necessity focuses on the attainment of some specific military objectives and ignores legal restrictions which provide protection to civilians but hinder the achievement of that objective.
The doctrine of military necessity was endorsed by a number of military strategists, and was common practice of many States before and after the adoption of the 1899 and 1907 Hague Conventions. The doctrine of military necessity still applies in contemporary IAC and NIAC because the doctrine has attained the status of customary international law.
The history of the evolution of the doctrine of military necessity is combatant-centred and anti-civilian protection. The doctrine as applied in ancient society was, as in contemporary armed conflicts, affected by political considerations and expediencies. The earliest proponent of what became known as the doctrine of military necessity was the Roman Catholic Church.
The Roman Catholic Church and religions in general, are very powerful institutions. In many countries, religion equals power – both political and economic power. In many states, use of religion as a demarcation line between political protagonists and as a tool of social and economic discrimination has become normalised, whether in India, Cambodia, Iran or the United States. There are many more countries where religion and religious institutions sustain or remove governments. In other words, religion provides a focus of identity, a sense of belonging and of solidarity.[5]
Religion is a potent divisive force. Those who are not religious or disagree with various religious doctrines become “the other” and therefore not part of “Us”. The “otherness” is generally the non-conformists which may include atheists, agnostics, witches and secularists. The non-conformists are generally despised or viewed as degenerates by devote Christians, Muslims, Hindus, Buddhists, who may also be political leaders who wield immense political and economic powers. Their religious views are often reflected in the national laws their Parliaments or legislatures enact, and international treaties that they negotiate, sign and ratify. Religious ideology and thought have greatly influenced the making of law generally and the doctrine of military necessity in particular. In this context, the Roman Catholic Church played a very significant role in the early stages of the development of the laws and customs of war.
A History of the Church is rich with many examples of excellent service rendered to the poor and the underprivileged members of society, especially in Africa, Asia and Latin America. Use of “Liberation theology” as a tool to oppose dictatorship and simultaneously support the poor was grounded in their religious beliefs and equality of all humankind. The strong religious convictions were then effectively applied in public and private domain to influence society, particularly in Latin America in the 1970s and 1980s. Religious leaders in South Africa, Philippines, Uganda, Kenya, for examples, took active part in opposing dictatorships in the 1970s and 1980s, and many of the senior Church leaders, including Archbishops, bishops, priests and nuns were arrested, tortured or murdered because of their support and protection of the poor against the tyranny of dangerous dictators.
The Roman Catholic Church, one of the oldest Christian institutions, also provided good educational institutions (including universities and colleges), hospitals and homes for the poor. There are therefore many aspects of the Roman Catholic Church teachings and conducts that are greatly appreciated and remembered with fondness and love.[6]
However, the Roman Catholic Church also has its very dark side. Available historical documents suggest that criminal acts that included money laundering, misappropriation of land, murder and blackmail are some of the vices committed by the clergy and other senior officials of the Church in the service of their God.[7] There are further examples of extreme sexual abuse, fraud and dishonesty committed by senior members of the clergy including some who served, and perhaps still serve, inside the Vatican up to the level of Cardinals.[8] Historical records also disclose instances of Papal abuse of power, cruelty, simony, nepotism, despotism and crude sex.[9] Further, available records provide evidence of close relationship between the Roman Catholic Church and the various dictatorships and vicious leaders around the world. The Roman Catholic Church in particular has, over the centuries, been fascinated with armed conflicts. Pope Pius XII, for example, before and during the Second World War, was so close and supportive of Adolf Hitler that he is remembered as “Hitler’s Pope”[10]
Over the centuries, religious institutions, including members of the Roman Catholic Church actively participated in armed conflicts as combatants. However, in the Catholic view, non-violence ought to be implemented in public policies and through public institutions as well as in personal and Church practice. Yet the Roman Catholic Church also appears to have endorsed the use of violence as one of the means to resolve conflict. In the spirit of endorsement of use of violence, the Roman Catholic Church has consistently argued for legal protection to be extended to ‘religious personnel’’ attached to armed forces while reluctant to address legal protection of the civilian population, a category most affected in armed conflict.[11]
Before the separation of Church and State, the legal protection of life and limb of the clergy who participate in armed conflict was a matter of religious (canon) law. In Europe, the norms of the Roman Catholic Church established two related prohibitions: (a) clergy were not to be targeted in military campaign and (b) they were not allowed to actively engage in warfare. The roles of the ‘religious personnel’ were limited to providing assistance to military personnel.[12] As to what constitutes “assistance” to military personnel was left undefined.
The immense influence of the Church allowed for a legal regime on protection of the clergy (religious personnel) to shift from religious law to the laws of the emerging nation states, effectively offering religious personnel to the services of the Armed Forces of the State. Thus, in the earliest Geneva Convention of 1864 in its Article 2, the treaty granted “the benefit of neutrality” to chaplains in the Armed Forces, notwithstanding that the “religious personnel” were partisan ‘combatants’, rendering service to the Armed Forces of one State against that of another. The protection granted to religious personnel has been enhanced by successive revisions of the Geneva Conventions and other legal instruments.
Since the adoption of Additional Protocol I of 1977 to the four Geneva Conventions of 1949, the term “religious personnel” has been used to denote the protected category of non-combatants with the armed forces who are ministers of religion. The Statute of the International Criminal Court (“The Rome Statute”) criminalizes intentionally directing attacks against personnel using distinctive emblem.[13] This provision extends legal protection to ‘religious personnel’ in armed conflict situation without providing a restrictive role in the “assistance” they provide to combatants and non-combatants.
The influence of the Roman Catholic Church in international law-making process started very early in history when the idea of “military necessity” as a legal doctrine began to emerge. The Church was a major player in armed conflict.[14] In medieval Europe, the Church was the leading landlord, and controlled most of the wealth of the State. Knights and Nobles owed their allegiance to the Church and were allies of the Church against the peasants. The Church, as the leading political and economic power at the time, took active interests in the management of politics and economy of the State. With the peasants and the poor demanding for equitable re-distribution of wealth; wealth mostly owned by the Church and its allies, the Knights and the Nobles, the demands of the peasants and the landless were rejected resulting in frequent wars fought between the Church and its allies on one side and the poor and the landless on the other.
At a time when Knights and Nobles monopolised the use of crossbow, a state-of-the-art military equipment of the time, the Church saw nothing wrong with its use as weapons of war against the peasants, particularly as it helped the Church keep peasants away from its vast track of land. However, in 1139, when the peasants got access to crossbows, and effectively used it against the Church, Knights and the Nobles, the leadership of the Church intervened and, using its political, economic and spiritual powers, declared the crossbow a “deadly weapon and odious to God”.[15] The impact of the prohibition of the use of crossbow by the leadership of the Church was not limited to the use of this particular weapon, but also created a category of Church properties that were deemed ‘civilian objects’ and therefore the peasants were banned from attacking it. The Church properties that were considered ‘civilian objects’ and could not be attacked included the monasteries, its farm land and other movable properties, as for example, a convoys of monks moving from a monastery in one part of the country to a monastery in another region of the country.
The reasons why the Church intervened in the regulation of war at this stage had nothing to do with humanitarian principles or any acts ‘odious to God’ but had everything to do with political, economic and military power of the Church. The Church had to find creative reasons to declare illegal, the use of crossbows in armed conflict. The only good reason the Church could articulate was that the use of crossbow was ‘odious to God’, thus hiding behind God while terrorising the civilian population in the name of that God.
Whereas at the time of crossbow prohibition, the doctrine of military necessity had not developed to the point we know it today, the act of the Church had a lot to do with class solidarity, abuse of power and protection of its political class, and very little to do with humanitarian principles. The action taken by the Church prohibiting use of crossbow as a weapon of war provides a template which was subsequently used by successive generations of combatants as justification of military necessity and fully articulated by the Major Powers who formulated and adopted the 1899 and 1907 Hague Conventions.
The decision of the Church to outlaw the use of the crossbow weapon is also consistent with the law of chivalry. Keen noted that the law of chivalry had nothing to do with humanitarian principles but “in effect, the code of chivalry created a guild of warriors with legal authority to pillage the ordinary peasants of whom the Church cared less.”[16] Baker candidly sums up the underlying principles establishing the law of chivalry as follows:
“Beneath the high idealism of chivalric honour…the occasional feat of arms is a diversion from the more serious business of pillage and destruction and chivalry owes more to the pen than the sword.”[17]
In summary, the Church, the Knights and Nobles, like later political leaders and military strategists, manipulated the law, often relying on the doctrine of military necessity, to protect what is perceived as national interests and not to provide humanitarian protection for all civilians.
Contemporary law on Military Necessity
In 1868 when the St. Petersburg Declaration was adopted, the legal position on military necessity had not changed much since the prohibition of crossbow as a weapon of war. St. Petersburg’s Declarations, for all its humanitarian rhetoric against using “arms which uselessly aggravate the sufferings” of combatants and non-combatants, reaffirmed that belligerents were justified in inflicting necessary sufferings on their enemies.[18] As to what may constitute necessary suffering was subjectively determined by combatants themselves just as the Church subjectively could determine “assistance” given to the Armed Forces by “religious personnel”.
To date, application of humanitarian provisions spelt out in St. Petersburg Declaration are subject to military necessity. Phillips correctly submitted that because the prohibition in St. Petersburg Declaration against causing unnecessary suffering was derogable for reasons overriding military necessity, in reality the provisions “imposed no practical or legal limit on military action.”[19] In a sense, military necessity provided complete immunity for violating the laws and customs of war as is often experienced in the contemporary war on terrorism and use of weapons of mass destruction such as chemical and biological weapons.[20]
After conducting extensive research on military necessity and prohibition of weapons which cause unnecessary suffering, Professor Kalshoven commented that he “searched in vain for an example of a State’s discarding a militarily useful weapon because it violated St. Petersburg Declaration on causing unnecessary suffering.”[21] On the contrary, Professor Kalshoven pointed out that St. Petersburg Declaration provided only one binding prohibition: outlawing the use of explosive bullets and, according to Royse, at the time St. Petersburg Declaration was adopted prohibiting the use of explosive bullets, they were already obsolete and of no military value.[22]
Field Marshall von Moltke, one of the greatest proponents of the doctrine of military necessity, expressed the majority view of his military contemporaries when he stated that “a ruthless war is quicker and therefore humane.”[23] Field Marshall von Moltke was concerned with the protection of the lives of his soldiers, not the lives of the civilian population or that of the opposing combatants.
Consistent with the views of Field Marshall von Moltke, the 1902 German Army Manual on Land Warfare provided, inter alia, that “certain severities are indispensable to war” and as a result, humanity was best served by the “ruthless application of them.”[24] Writing in support of the 1902 German Army Manual on Land warfare, General von Hartman derided the growing humanitarian trends in the Laws of War, and asserted that strict enforcement of military discipline ultimately achieved the most humane result.[25]
Several other scholars at the time supported the position taken by General von Hartman. Lueder, for example, argued that the doctrine of military necessity was generally compatible with the Laws of War. He, however, stressed that in rare cases of wars, when the circumstances are such that the attainment of the object of war and the escape from extreme danger would be hindered by observing limitations imposed by the laws of war, necessity must triumph.[26]
Thus, according to Lueder, the doctrine of military necessity was perfectly legal and proper because the right of States to self-preservations takes precedence over all obligations under international law. Lueder justified his position by emphasising that no serious political leader would allow his country to be conquered, destroyed or defeated because of international law. Lueder further argued that law should reflect practical reality, and that practical reality means that military commanders will always choose to avoid defeat.[27] Alphonse Rivier concurred with Lueder and added that when the survival of a State is at stake, then the “state [is] obliged, for the salvation of its country, to violate the rights of another state”.[28] (Emphasis added).
Chancellor von Bismarck, paraphrasing the submission of Alphonse Rivier, retorted, “What leader would allow his country to be destroyed because of international law.”[29] Consistent with von Bismarck’s views, the 1915 translation of the German Military Manual provided that
A war conducted with energy cannot be directed merely against the combatant forces of the Enemy State and the position they occupy, but it will and must in like manner seek to destroy the total intellectual and material resources of the latter. Humanitarian claims, such as the protection of men and their goals, can only be taken into considerations in so far as the nature and object of war permit.[30]
When an army of a State seeks “to destroy the total intellectual and material resources” of its enemy, such actions go beyond the scope of IHL and may result not only in the commission of war crimes but also of crimes against humanity or genocide. That concept, which may be described as ‘total war’ calls for the destruction of a people, for after destroying the ‘intellectual and material resources’ of the State, what else in effect is left? This is precisely the policy the German soldiers deployed against the Herero tribe of the current day Namibia which decimated the civilian population or what the British colonial army carried out in Kenya against the civilian population in the guise of fighting the Mau Mau freedom fighters. [31]
It is therefore not surprising that the above views – of waging total war – were not universally endorsed. Julius Stone, for example, rejected in toto, the German articulations of the doctrine of military necessity.[32] Garner, in rejecting the views articulated in the German Army Manual and later applied in Namibia, argued that “…it is quite clear that the authors of the German Manual regard military effectiveness rather than consideration of humanity the test of the legitimacy of an instrument or measure.”[33] Thus, based on arguments of these legal scholars, it was acknowledged that the doctrine of military necessity had gone a step too far and outside the Laws of War.
Before and after the adoption of the 1899 and 1907 Hague Conventions, the interpretations of the doctrine of military necessity remained elastic and ambiguous. The broad definitions of the doctrine of military necessity and its applications in armed conflict situations have permitted belligerents to bring within the legal framework most violations of the Laws of War. Historical records demonstrate that belligerents, often through international electronic media and press, express their compliance with IHL while simultaneously violating the law under the pretext of military necessity.[34]
On the other hand, even States that publicly cast aside all forms of legal restraints by their respective belligerents do not necessarily wish their conduct to be construed as acts of admission that IHL are being violated. For those States that are in breach of IHL, what other States consider to be violations of the law, these States treat such violations as merely differences of interpretation, and not violations. Thus, the law is interpreted differently by States which violate it, consistent with their unrestrained and illegal conduct.
Conclusion
In summary, the inclusion of humanitarian-sounding provisions in IHL, void of substantive enforcement measures, at both the national and international for a, and compounded by the vague definitions attributed to the doctrine of military necessity, help cloak unlawful conduct in legal legitimacy. Further, it is also recognized that the making of IHL, like all international treaties, are based on consensus arrived at by State Parties to the treaty. Thus, international treaties reflect the least common denominator hence the difficulties of interpretation of legal principles enshrined in a treaty, as for example, the doctrine of military necessity. Until such a time that a better way of making international laws and ratifying treaties is arrived at, States will continue to protect their sovereignty and national interests at the expense of providing a legal regime that protects civilians, the civilian population and civilian objects in times of international or non-international armed conflicts.
Obote Odora, LLM, LLD (Stockholm), Specialist, International Humanitarian Law
FOOTNOTES:
[1] Schmitt, M.N, “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance” in, Virginia Journal of International Law, Vol.50, No.4, (2010), pp795-839.
[2] Draper, G.I.A.D, “Military Necessity and Humanitarian Imperatives” in, RDMDG, Vol.12/2 (1973), pp. 151,
[3] Hayashi, N, “Requirements of Military Necessity in International Humanitarian Law and International Criminal Law” in Boston University Law Journal Vol. 28 Issue1, (2010), pp 39-140.
[4] Best, G, (1983) Humanity in Warfare: The Modern History of the International Armed Conflicts (Clarendon Press).
[5] Falconer, A.D, “The Role of Religion in Situation of Armed Conflict: The Case of Northern Ireland” Bulletin of Peace Proposals, Vo.21(3):273-280 (1990)
[6] Vidmar, J.OP (2005), The Catholic Church Through The Ages: A History(Panlist-Press, New York/Mahwaii, N.J)
[7] Yallop, D, (2007) In God’s Name – An Investigation into the Murder of Pope John Paul I (Robinson, London)
[8] Yallop, D, (2007) The Power and the Glory – Inside the Dark Heart of Paul II’s Vatican (Constable, London)
[9] De Rosa, Peter, (1988) Vicars of Christ – The Dark Side of the Papacy (POOLBEG)
[10] Cornwell, J, (1999) Hitler’s Pope – The Secret History of Pius XII (PENGUIN BOOKS)
[11] Lunze, S, “Serving God and Caesar: Religious Personnel and their Protection in Armed Conflicts” IRRC, March 2004, Vol.86, No.853
[12] Ibid.
[13] The Rome Statute, UN. Doc. A/CONF.183/9 (17 July 1998).
[14] Keen, M.H, (1965) The Law of War in the Late Middle Ages 50.
[15]Friedman, L (1972), (ed.,) The Law of War: A Documentary History, 3-15. The Church found it imperative to denounce the crossbow because “the weapon was used by peasants to cut down the allies of the Church, at long distance” at p.9.
[16] Keen, M. H, The Laws of War in the Late Middle Ages, supra, note 14.
[17] Baker, R (1974), The Knight and Chivalry 210.
[18]Declaration Renouncing the Use, in Time of War, of Explosives Projectiles under 400 Grammes weight, Dec.11,1868,138 Consolidated Treaty Series 297.
[19] Phillips, C.P, Air Warfare and Law”, George Washington Law Review 395 (1953) at p.323
[20] Romano, J-A, “Combating Terrorism and Weapons of Mass Destruction: Reviving the Doctrine of a State Necessity”, Georgetown Law Journal Warfare Vol7/4, (1999) pp.1023-1057
[21] Kalshoven, F, (1987) Constraints on the Waging of War, at p.30.
[22] Royse, M.W, (1928), Aerial Bombardment and the International Regulation of Warfare 131-32. Royse points out that the real reason why the explosive bullets were prohibited by St. Petersburg Declaration was because many countries participating at the conference considered explosive so dangerous to the user (and less dangerous to the anticipated victim) that they were no longer manufactured, even at the time of the prohibition.
[23] Best, G, (1983) Humanity in Warfare, supra, note,4
[24] Morgan, J.M, (translation 1915) The War Book of the General Staff 72.
[25] O’Brien, W.V, “The Meaning of ´Military Necessity” in International Law, I World Polity 109 (1957) at p.121
[26] 4 Holtzendorff´s Hambuch, 255, reprinted in 2 John Westlake International Law,115(1907)
[27] O’Brien, W.V, “The Meaning of ´Military Necessity´”, supra, note 25, at p.122.
[28]Id., at p.124.
[29] af Jochnick, C, and Normand, R, “The Legitimation of Violence: A Critical History of the Laws of War” Harvard International Law Journal 35(1994) at p.64.
[30] Morgan, J.M, (translation, 1915) The War Book of General Staff 72, at p.68.
[31] Anderson, D (2005) Histories of the Hanged: The Dirty War in Kenya and the End of Empire (W.W. NORTON & COMPANY, New York, London). See also Elkins C (2005) BRITAIN’S GULAG: The Brutal End of Empire in Kenya (JONATHAN CAPE, London).
[32] Stone, J, Legal Control of International Conflict 3-18 (1954) at p.352
[33] Garner, J.W, Studies in Government and International Law 261-66(1943) at p.262.
[34] Falk, R.A (1971) (ed.,) Crimes of War (Penguin Books).
